Principle and Politics in the New History of Originalism

Abstract

The emergence of a new form of originalism has sparked an interest in the theory’s past that is particularly welcome as developments on the Supreme Court and in the Republican Party unsettle the theory’s place in American law and politics. Our understanding of the theory’s development, however, has been limited by an unfortunate and unnecessary division between what are now two separate histories of originalism. One history examines the theory’s development in academia and emphasizes the influence of principled argument. A second investigates its role in politics and highlights the role of conservative interests. This review essay identifies this division and offers two ways to create a productive dialogue. It first suggests we consider how political interests have shaped the academic debates over originalism by influencing the institutions that produce those debates. Second, it urges a reconsideration of how and why academic debates have shaped the theory’s political uses. There is good reason to consider whether principled constitutional argument, and thus the debates of academics, have shaped the political uses of originalism even if the theory’s most important advocates were motivated mostly – or even entirely – by the pursuit of political advantage. Using these approaches to identify the reciprocal influence of politics and principle on originalism’s past can help produce the new history of originalism we need to understand, evaluate, and influence the theory’s role in American law and politics.